United States District Court, District of Columbia
N. MCFADDEN UNITED STATES DISTRICT JUDGE.
Siqing Wang challenges the manner in which the United States
Citizenship and Immigration Services handled her 1-526
immigrant visa petition. Her suit names four defendants: the
United States Citizenship and Immigration Services; Jeh
Johnson, former Secretary of the Department of Homeland
Security; Leon Rodriguez, Director of the United States
Citizenship and Immigration Services; and Julia Harrison,
Acting Chief of the Immigrant Investor Program. Currently
before me is Defendants' motion to dismiss for lack of
subject matter jurisdiction and, with respect to some of
Plaintiff s arguments, for failure to state a claim. Because
the District Court for the District of Columbia has subject
matter jurisdiction to review the actions that Plaintiff
challenges, the motion to dismiss is DENIED in part. However,
because the complaint does not adequately state a claim with
regard to the denial of Plaintiff s motion to reopen or
reconsider, the motion to dismiss is GRANTED in part and
Plaintiffs claims concerning that motion are DISMISSED
complaint alleges that she is a 23-year-old graduate student
who wishes to become a permanent resident of the United
States. Accordingly, Plaintiff invested $500, 000
in an American business, believing that this investment would
make her eligible for permanent residency under 8 U.S.C.
§ 1153(b)(5). The $500, 000 were proceeds of a loan
secured by property that Plaintiff owned jointly with her
father. Although she only held a 50% interest in the
property, her father gave her his half of the loan proceeds
as a gift. Plaintiff took the funds and invested them in an
American business in 2014.
then filed an 1-5 2 6 visa petition. On October 5, 2015, the
United States Citizenship and Immigration Services (USCIS)
approved the petition, concluding that she satisfied the
requirements for an EB-5 immigrant investor visa. However,
the USCIS initiated revocation proceedings less than two
months later. On December 3, 2015, it sent her a Notice of
Intent to Revoke (NOIR). The NOIR stated that Section
1153(b)(5)'s requirement of a $500, 000 investment of
capital is a requirement that the investor put $500, 000 of
her own capital at risk. Because Plaintiffs investment
consisted of loan proceeds and she did not own $500, 000
worth of the property used to secure the loan, USCIS took the
position that she had not invested sufficient capital to
satisfy Section 1153(b)(5). Plaintiff responded by repeating
her prior representation that her father had gifted her his
share of the loan proceeds, so that all the capital she
invested was her own. However, the USCIS issued a decision on
February 1, 2016, informing her that her visa petition was
denied. Importantly, this decision said nothing about a visa
through a new attorney, filed a motion to reopen or
reconsider the USCIS's decision (MTR). The MTR argued
that the decision should be reopened because the Plaintiffs
prior attorney had rendered ineffective assistance in
presenting and explaining the underlying loan transactions.
The MTR also argued that, properly interpreted, the loan
documents showed that Plaintiffs father had gifted her a
portion of his interest in the property securing the loan
prior to the loan's execution. U.S. CIS denied the MTR,
determining, as Plaintiff had originally alleged, that
Plaintiffs father "is a property owner gifting a loan
amount corresponding to his property interest." Compl.
¶ 48; Pl.'s Notice of Filing, Ex. 1 at 4.
then filed this suit, challenging both the denial of her visa
petition and the denial of her MTR. Plaintiffs complaint
named four defendants: USCIS; Jeh Johnson, then-Secretary of
the Department of Homeland Security; Leon Rodriguez, the
Director of USCIS; and Julia Harrison, the Acting Chief of
the Immigrant Investor Program. Defendants jointly filed a
motion to dismiss for lack of subject matter jurisdiction and
for failure to state a claim.
PLAINTIFF HAS ESTABLISHED SUBJECT MATTER
courts are courts of limited jurisdiction" and therefore
"possess only that power authorized by Constitution and
statute." Kokkonen v. Guardian Life Ins. Go. of
America, 511 U.S. 375, 377 (1994). Accordingly,
jurisdiction is a prerequisite that must be satisfied before
proceeding to the merits, and a federal court must dismiss
any action over which it determines that it lacks subject
matter jurisdiction. Moms Against Mercury v. FDA,
483 F.3d 824, 826 (D.C. Cir. 2007); see also Fed. R.
Civ. P. 12(h)(3). On a motion to dismiss for lack of subject
matter jurisdiction under Federal Rule of Civil Procedure
12(b)(1), the plaintiff bears the burden of establishing
jurisdiction. Georgiades v. Martin-Trigona, 729 F.2d
831, 833 n.4 (D.C. Cir. 1984). A plaintiff may rely on facts
outside the pleadings to satisfy this burden, as "the
court may consider the complaint supplemented by undisputed
facts evidenced in the record, or the complaint supplemented
by undisputed facts plus the court's resolution of
disputed facts." Herbert v. Natl Acad. of
Scis., 974 F.2d 192, 197 (D.C. Cir. 1992).
general matter, federal courts have jurisdiction over actions
that raise questions of federal law and over actions that
name the United States as a defendant. 28 U.S.C. §§
1331 and 1346. Moreover, the Administrative Procedure Act
establishes "a strong presumption" that agency
actions are reviewable-a presumption that "can be
rebutted only by a clear showing that judicial review would
be inappropriate." Nat. Res. Def. Council, Inc. v.
SEC, 606 F.2d 1031, 1043 (D.C. Cir. 1979). However, 8
U.S.C. § 1252(a)(2)(B)(ii) expressly strips federal
courts of jurisdiction to review decisions "specified
... to be in the discretion of the Attorney General or the
Secretary of Homeland Security, " with one exception not
relevant to this case.
invokes federal jurisdiction under 28 U.S.C. § 1331
(federal question jurisdiction) and under 28 U.S.C. §
1346 (actions naming the United States as a defendant)..
Defendants' motion to dismiss does not dispute that
Plaintiff has raised a federal question and named the United
States as a defendant. Instead, Defendants confidently insist
that "the case will be dismissed" based on
persuasive authority holding that 8 U.S.C. § 1155
specifies revocation of an approved immigrant visa petition
to be within the sole and unreviewable discretion of the
Secretary of Homeland Security for purposes of Section
l252(a)(2)(B)(ii). Defs.'MOL ISO Mot. Dismiss at 9.
course, Defendants' argument is only relevant to the
extent that Plaintiff seeks review of a revocation. The
complaint in this case seeks review of two USCIS actions-a
decision rendered on February 1, 2016 (regarding Plaintiffs
visa petition), and a decision rendered on August 3, 2016
(regarding Plaintiffs MTR). The parties dispute whether the
first decision should be treated as a revocation or a denial.
They agree that the second decision is a denial of Plaintiffs
MTR. For the reasons explained below, I conclude that neither
action is a revocation. Thus, Section l252(a)(2)(B)(ii) is
inapplicable, and jurisdiction is established by 28 U.S.C.
§§ 1331 and 1346.
Jurisdiction Over the Denial of Plaintiffs Visa
parties agree that federal courts have jurisdiction to review
the denial of a visa petition. See Fogo de Chao
(Holdings) Inc. v. DHS,769 F.3d 1127, 1138-39 (D.C.
Cir.' 2014)., By contrast, the great weight of persuasive
authority indicates that federal courts lack jurisdiction to
review revocation of a visa petition's approval. See
Mohammad v. Napolitano,680 F.Supp.2d 1, 4-6 (D;D.C.
2004) (collecting cases and holding that, "by using the
terms 'may, ' 'at any time, ' and 'deems,
' [Section 1155] specified that the authority to make
revocation decisions was within the discretion of defendants,
and therefore outside the scope of this Court's
review").Thus, although Plaintiff s complaint